Unfair dismissal in Queensland is the most common dispute in relation to employment law.
These claims are made in concern to the manner in which an individual was dismissed or the reasons surrounding their termination of employment.
An unfair dismissal of an employee does not require an unlawful act, but relies on the termination being harsh, unjust, or unreasonable.
An employee who believes they have been unfairly dismissed can choose to commence legal proceedings against their employer for unfair dismissal.
Proceedings for Unfair Dismissal in Queensland
In relation to commencing action for unfair dismissal in Queensland, the process will depend on whether the employer was covered by the Industrial Relations Act 2016 (this act applies if you are employed by a state or local government or their subsidiaries), or more commonly the Fair Work Act 2009.
Employees who are employed in the private sector in Queensland are covered by the Fair Work Act 2009 and must apply through the Fair Work Commission.
Proceedings under the Fair Work Act
If you choose to proceed in legal proceedings against your employer for unfair dismissal, you must complete the form provided on the Fair Work Commission’s website (linked at the bottom of the page) within 21 days of your employment termination.
If your application is successful, the Fair Work Commission (FWC) has several avenues, such as ordering the payment of compensation by your employer or ordering that you be reinstated to your former employment, this can include a sum money for loss of wages for the time you were dismissed.
The FWC will decide in favour of the employee in an unfair dismissal proceeding when it has been established that the dismissal was harsh, unjust, or unreasonable. A number of aspects may contribute into finding this:
- Whether there were any warnings issued to the employee due to unsatisfactory work performance;
- If the employee was provided an opportunity to respond to the issues/dismissal;
- There was an insufficient reason for dismissing the employee;
- Regarding redundancy, whether it was a genuine redundancy.
However, an unfair dismissal action will not be found if the employee was dismissed within their probationary period (most commonly this is three months), working on a temporary or casual basis, or earning more than the high-income threshold (which is currently $158,500 per year).
What happens if I want to apply for unfair dismissal, but I have exceeded the 21 days?
The FWC, as well as the Industrial Relations Commission (IRC), have the ability to extend the time limit put in place to make an application for unfair dismissal.
When the Commission decides whether to exercise this extension, they will take into consideration several factors, such as the reason for the delay in the application, the amount of bias an extension of time would have on the employer, public policy, and the contents of the application itself.
However, this decision is not taken lightly and will only be accepted due to exceptional circumstances (See Fair Work Act 2009 s.394(2)).
What if I have been dismissed, but I have not worked for my employer for the required period?
This issue is faced by many employees as for those who were employed by a small business, the required period is generally one year for an employee to be eligible for unfair dismissal.
Section 23 of the Fair Work Act 2009 (FWA) defines a small business as a business that employs fewer than 15 employees, this is including all full-time, part-time, and casual employees.
The FWA provides little assistance for employees in these circumstances.
Nevertheless, some recourse may be available in your employment contract which may state conditions and obligations which must be met before dismissal for unsatisfactory work performance.
Some remedies then may be available through breach of contract, however the FWC does not provide much leeway for this issue unfortunately.
Do I Engage a lawyer for an unfair dismissal in Qld?
These times can be extremely stressful, and lawyers are understanding of this.
Lawyers within this field are experienced within this process which can come across quite confusing and are able to assist in coming to a solution.
Lawyers can provide legal advice in relation to any issues you may have, look over any relevant employment contracts and documents which may assist your case, assist in mediations and resolutions, prepare court documents, and appear in the Commission on your behalf.
If you are looking to engage a lawyer for your unfair dismissal legal proceeding, use our website to find a suitable lawyer for you out of the best in the Sunshine Coast.
Further information can be found on the Fair Work Commission Website: https://www.fwc.gov.au/termination-of-employment/unfair-dismissal
Application form for unfair dismissal: